Acts, omissions, and votes (written Dec. 10, 2000)

Jonathan Baron

Research on human judgment has revealed a common and widespread
bias: harm caused by action is weighed more heavily than harm
caused by omission. For example, suppose your child has a ten
percent chance of getting a type of flu. A vaccine, the only one
available, will prevent this kind of flu. But the child has a
five percent chance of suffering from the side effects of the
vaccine, and these effects are just as serious as those of the
flu itself. Should you get the vaccine for your child?

Many people would not get the vaccine. They feel that they are
not responsible for the harm that might result from inaction,
even though they had the option to prevent this harm. If we
always chose the option with a lower probability of harm, we
would all suffer less harm in the long run. Yet, human intuition
often favors inaction, even when the risk of harm from inaction
is greater.

This intuitive principle applied in three ways to the arguments
against further recounts in Florida, as expressed in the dissents
to the Florida Supreme Court decision of Dec. 8, and elsewhere.

First, manual recounting creates unfairness. People are treated
unequally, thus potentially violating the equal protection clause
of the U.S. Constitution. Different standards will be used by
different counties, and some counties would not be recounted at
all. (The remedy to the last problem, however, was embraced by
the court majority, namely, to recount all undervotes in the
state.) On the other side, though, recounting reduces
unfairness, so inaction leads to unfairness too. It is unfair
that votes are left uncounted just because they were in a county
that used punched-card ballots.

Second, manual recounting violates rights of voters to have their
vote counted, because it leads to error. Yet, rights are also
violated by failure to recount. The language of rights does not
lend itself to computation, but computation seems to be the only
solution. Which group of violations is larger? As the
computer-scientist John McCarthy states (in his Stanford
University web page): ``He who refuses to do arithmetic is doomed
to talk nonsense.''

Third, manual recounting creates error. Repeated examination of
the ballots and liberal standards for recording intended votes
(such as counting dimpled chads) will cause votes to be counted
that were not intended. Surely such errors happen, but failure
to recount manually will lead to error of a different sort: the
failure to record intended votes.

The important question is which error is greater. Expert
testimony and even experimentation (which could be conducted
quickly) would be relevant, but, in the absence of such testimony
or experimentation it seems likely to me that the errors created
by repeated recounting or by counting dimpled chads are small
compared to the errors that result from failure to recount. This
is, in any case, the question that the courts should address.

The standards of the law are affected by a common human
intuition, that harms of action are worse than otherwise
equivalent harms of omission. This in itself is not surprising,
as the law is the result of human judgments accumulated over
centuries. It is disturbing, though, because it leads to
consequences that are worse than they could be.

It is also disturbing because the court's remedy is easy:
estimate which error has a greater probability, as best this can
be done. (If this is difficult, that is no more of an excuse for
inaction than for action.) The bias toward harms of omission
thus reflects a deep innumeracy, not just a lack of knowledge but
also a disrespect for numbers and numerical thinking. Because
the problem is deep, the remedy for it must also be deep, a
change in culture, beginning with education and journalism.